August 15, 2017 | Vol. 67

MUST READS
(3 summaries)
NOTEWORTHY IF YOU MUST READ

GML §50-H  

Second Deptartment

Action for false arrest and false imprisonment dismissed for failure to comply with defendant’s 50-H demand where plaintiff attended hearing but did not answer many questions based on his attorney’s objections, presumably on Fifth Amendment grounds, but the plaintiff himself did not raise the Fifth Amendment ground at the 50-H hearing or schedule a follow-up 50-H hearing after the criminal case was resolved and before the suit was commenced. Only the person with the Fifth Amendment right could asserted it at the 50-H hearing and, even if properly asserted, there was an obligation to schedule a new 50-H after the grounds for the Fifth Amendment objection were removed. Di Pompo v City of Beacon Police Dept.


Spoliation   Notice   Sanctions  

Second Deptartment

Lower court providently denied plaintiff’s demand for sanctions for alleged spoliation where the defendant did not have notice of a potential claim for a bed collapsing until the action was commenced 2 years later and it had examined the bed, found it to be fit. and placed it back into use, making it unable to be specifically identified, long before the action was commenced. Plaintiff could not show that defendant negligently or intentionally failed to preserve crucial evidence for a claim it had notice of. Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc.


Estate   Motion to Dismiss   Reasonable Excuse   Meritorious Action   Prejudice  

Second Deptartment

Defendants’ motions to dismiss for failure to timely substitute estate as plaintiff under CPLR §1021 granted where plaintiff failed to show that he made diligent efforts to substitute the estate, did not provide any reasonable excuse for failure to move to substitute the estate, failed to provide an affidavit showing a meritorious action, and failed to rebut the defendants’ proof of prejudice. Howlader v Lucky Star Grocery, Inc.

NOTEWORTHY
(6 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Assumption of Risk  

Second Deptartment

High school denied summary judgment and preclusion of plaintiff’s expert where student participating in high school football game hit his head on steel plate covering a pole-vault pit a few feet from the football sideline when he was forced out of bounds. Defendant failed to eliminate triable issues regarding whether the placement of the steel plate near the sideline unreasonably increased the risk to players. Deserto v Goshen Cent. Sch. Dist.


Premises Liab   Building Code  

First

Security guard injured when he stepped on outer edge of ramp he was patrolling causing him to lose his balance and fall. Defendants’ expert architect opined that the 1968 NYC building codes, OSHA regulations, and National Fire Protection Agency regulations did not apply to the ramp which was not a means of ingress/egress nor an anticipated pedestrian path and that the use of bright colored yellow paint at the edge of the ramp was sufficient and in compliance with the American Society for Testing and Materials standards. Plaintiff’s expert failed to point to any code, rule, regulation, or standard which would make the ramp defective when built and defendant was granted summary judgment. Schmidt v One N.Y. Plaza Co. LLC


Premises Liab   Sidewalk   Slip/Trip   § 7-210   Create Condition  

Second Deptartment

Abutting land owner denied summary judgment on its claim that the defect causing the plaintiff’s injury was a defective curb. for which it would not be responsible under administrative code §7-210, where the evidence presented by the defendant, including the plaintiff’s deposition, showed that there was a gap or setback between the curb and the beginning of the sidewalk. Under §7-210 the abutting land owner is responsible for the area from the curb line to the abutting premises wall and is further responsible for any condition which it created or benefited from by special use. Landowner failed to show that work it performed in 1995 did not cause or exacerbate the condition. Gelstein v City of New York


Premises Liab   Sidewalk   Slip/Trip   § 7-210   Create Condition   Motion to Dismiss  

Second Deptartment

Leasee of parking lot denied dismissal on documentary evidence (excerpts of its lease) and for failure to state a cause of action where evidence did not “utterly refute” facts related to plaintiff’s causes of action. While a tenant does not generally assume a duty under administrative code §7-210 unless it creates the condition or makes a special use of the area, it is subject to the duties under the administrative code where its obligations under the lease are so extensive as to displace the landowner’s duty. Defendant failed to show that it did not create the condition or that its lease did not displace the landowner’s duty. Torres v City of New York


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

Second Deptartment

Surgeon granted summary judgment upon his expert’s opinion that since there was good blood flow to the plaintiff’s right testicle after the alleged torsion, which would have cut off all blood flow, following a surgery to remove fluid around the testicle, any alleged malpractice could not be the cause of the demise of the testicle. Plaintiff’s expert failed to raise a question of fact in response because he/she did not review the ultrasounds which defendant’s expert reviewed in making his opinion, relying solely on the ultrasound report, and failed to rebut specific statements made by defendant’s expert, rendering the plaintiff’s expert’s opinions conclusory and speculative. Aliosha v Ostad


Premises Liab   Stairs   Duty  

Second Deptartment

Action claiming that plaintiff fell on water on staircase at ENT clinic in hospital dismissed as against separate tenant and management corporations upon proof that they did not own, occupy, or control the stairs where the plaintiff fell. The duty to maintain premises in a reasonably safe manner arises from ownership, occupation, or control of the premises and absent one of these conditions there can be no duty owed to the plaintiff. Donatien v Long Is. Coll. Hosp.

IF YOU MUST READ
(4 summaries)
MUST READS NOTEWORTHY

Premises Liab   Slip/Trip   Stairs   Expert Aff   Conclusory  

Second Deptartment

Homeowner granted summary judgment on proof that he maintained the steps in a reasonably safe manner. Plaintiff failed to raise a triable issue of fact by her expert’s opinion which was conclusory. The court does not give the details of the defect or the proofs. Martirosyan v Antreasyan


Premises Liab   Dangerous Condition   Create Condition   Notice  

Second Deptartment

University granted summary judgment on proof that it neither created the condition nor had notice of a dangerous condition when a light cover fell from the ceiling onto the plaintiff in her dorm room. The court does not give the details of the proofs. Williamson v Long Is. Univ.


Premises Liab   Dangerous Condition  

Second Deptartment

Theater owner and owner of separate parcel housing lobby and steps where plaintiff fell denied summary judgment for failing to eliminate triable issues of fact as to whether there was a dangerous condition. The court does not give the details of the defect or the proofs. DiGiacomo v St. George Theatre Restoration Corp.


Serious Injury   Expert Aff  

Second Deptartment

Plaintiff failed to raise an issue of fact in opposition to the defendants’ showing of entitlement to summary judgment by competent medical proof that plaintiff’s injuries to her cervical spine and shoulder did not meet the serious injury threshold. The court does not give the details of the proofs. Avila v Jica

About Matt McMahon

Civil trials and appeals since 1984

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